PRIOR PRINTER'S NO. 271

PRINTER'S NO.  769

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

273

Session of

2011

  

  

INTRODUCED BY ALLOWAY, WOZNIAK, ROBBINS, FONTANA, EICHELBERGER, ORIE, FOLMER, PILEGGI, BREWSTER, SMUCKER, SOLOBAY, RAFFERTY, YAW, VOGEL, SCARNATI, BOSCOLA, STACK, PIPPY, MENSCH, TOMLINSON, BROWNE, WARD, YUDICHAK, D. WHITE, KASUNIC, GORDNER, PICCOLA, BAKER, BRUBAKER, WAUGH, McILHINNEY AND ARGALL, JANUARY 26, 2011

  

  

AS AMENDED ON THIRD CONSIDERATION, MARCH 7, 2011   

  

  

  

AN ACT

  

1

Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and

2

Judicial Procedure) of the Pennsylvania Consolidated

3

Statutes, in general principles of justification, further

4

providing for definitions, for use of force in self-

5

protection, for use of force for the protection of other

6

persons, for grading of theft offenses and for licenses to

7

carry firearms; and providing for civil immunity for use of

8

force.

9

The General Assembly finds that:

10

(1)  It is proper for law-abiding people to protect

11

themselves, their families and others from intruders and

12

attackers without fear of prosecution or civil action for

13

acting in defense of themselves and others.

14

(2)  The Castle Doctrine is a common law doctrine of

15

ancient origins which declares that a home is a person's

16

castle.

17

(3)  Section 21 of Article I of the Constitution of

18

Pennsylvania guarantees that the "right of the citizens to

19

bear arms in defense of themselves and the State shall not be

 


1

questioned."

2

(4)  Persons residing in or visiting this Commonwealth

3

have a right to expect to remain unmolested within their

4

homes or vehicles.

5

(5)  No person should be required to surrender his or her

6

personal safety to a criminal, nor should a person be

7

required to needlessly retreat in the face of intrusion or

8

attack outside the person's home or vehicle.

9

The General Assembly of the Commonwealth of Pennsylvania

10

hereby enacts as follows:

11

Section 1.  Section 501 of Title 18 of the Pennsylvania

12

Consolidated Statutes is amended to read:

13

§ 501.  Definitions.

14

Subject to additional definitions contained in subsequent

15

provisions of this chapter which are applicable to specific

16

provisions of this chapter, the following words and phrases,

17

when used in this chapter shall have, unless the context clearly

18

indicates otherwise, the meanings given to them in this section:

19

"Believes" or "belief."  Means "reasonably believes" or

20

"reasonable belief."

21

"Correctional institution."  Any penal institution,

22

penitentiary, State farm, reformatory, prison, jail, house of

23

correction, or other institution for the incarceration or

24

custody of persons under sentence for offenses or awaiting trial

25

or sentence for offenses.

26

"Corrections officer."  A full-time employee assigned to the

27

Department of Corrections whose principal duty is the care,

28

custody and control of inmates of a penal or correctional

29

institution operated by the Department of Corrections. 

30

"Deadly force."  Force which, under the circumstances in

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1

which it is used, is readily capable of causing death or serious

2

bodily injury.

3

"Dwelling."  Any building or structure, including any

4

attached porch, deck or patio, though movable or temporary, or a

5

portion thereof, which is for the time being the home or place

6

of lodging of the actor.

7

"Peace officer."  Any person who by virtue of his office or

8

public employment is vested by law with a duty to maintain

9

public order or to make arrests for offenses, whether that duty

10

extends to all offenses or is limited to specific offenses, or

11

any person on active State duty pursuant to [section 311 of the

12

act of May 27, 1949 (P.L.1903, No.568), known as "The Military

13

Code of 1949."] 51 Pa.C.S. § 508 (relating to active duty for

14

emergency). The term "peace officer" shall also include any

15

member of any park police department of any county of the third

16

class.

17

"Residence."  A dwelling in which a person resides, either

18

temporarily or permanently, or visits as an invited guest.

19

"Unlawful force."  Force, including confinement, which is

20

employed without the consent of the person against whom it is

21

directed and the employment of which constitutes an offense or

22

actionable tort or would constitute such offense or tort except

23

for a defense (such as the absence of intent, negligence, or

24

mental capacity; duress; youth; or diplomatic status) not

25

amounting to a privilege to use the force. Assent constitutes

26

consent, within the meaning of this section, whether or not it

27

otherwise is legally effective, except assent to the infliction

28

of death or serious bodily injury.

29

"Vehicle."  A conveyance of any kind, whether or not

30

motorized, which is designed to transport people or property.

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1

Section 2.  Section 505(b) of Title 18 is amended and the

2

section is amended by adding a subsection to read:

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§ 505.  Use of force in self-protection.

4

* * *

5

(b)  Limitations on justifying necessity for use of force.--

6

(1)  The use of force is not justifiable under this

7

section:

8

(i)  to resist an arrest which the actor knows is

9

being made by a peace officer, although the arrest is

10

unlawful; or

11

(ii)  to resist force used by the occupier or

12

possessor of property or by another person on his behalf,

13

where the actor knows that the person using the force is

14

doing so under a claim of right to protect the property,

15

except that this limitation shall not apply if:

16

(A)  the actor is a public officer acting in the

17

performance of his duties or a person lawfully

18

assisting him therein or a person making or assisting

19

in a lawful arrest;

20

(B)  the actor has been unlawfully dispossessed

21

of the property and is making a reentry or recaption

22

justified by section 507 of this title (relating to

23

use of force for the protection of property); or

24

(C)  the actor believes that such force is

25

necessary to protect himself against death or serious

26

bodily injury.

27

(2)  The use of deadly force is not justifiable under

28

this section unless the actor believes that such force is

29

necessary to protect himself against death, serious bodily

30

injury, kidnapping or sexual intercourse compelled by force

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1

or threat; nor is it justifiable if:

2

(i)  the actor, with the intent of causing death or

3

serious bodily injury, provoked the use of force against

4

himself in the same encounter; or

5

(ii)  the actor knows that he can avoid the necessity

6

of using such force with complete safety by retreating

7

[or by surrendering possession of a thing to a person

8

asserting a claim of right thereto or by complying with a

9

demand that he abstain from any action which he has no

10

duty to take], except [that:

11

(A)]  the actor is not obliged to retreat from

12

his dwelling or place of work, unless he was the

13

initial aggressor or is assailed in his place of work

14

by another person whose place of work the actor knows

15

it to be[; and

16

(B)  a public officer justified in using force in

17

the performance of his duties or a person justified

18

in using force in his assistance or a person

19

justified in using force in making an arrest or

20

preventing an escape is not obliged to desist from

21

efforts to perform such duty, effect such arrest or

22

prevent such escape because of resistance or

23

threatened resistance by or on behalf of the person

24

against whom such action is directed].

25

(2.1)  Except as otherwise provided in paragraph (2.2),

26

an actor is presumed to have a reasonable belief that deadly

27

force is immediately necessary to protect himself against

28

death, serious bodily injury, kidnapping or sexual

29

intercourse compelled by force or threat if both of the

30

following conditions exist:

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1

(i)  The person against whom the force is used is in

2

the process of unlawfully and forcefully entering, or has 

3

unlawfully and forcefully entered and is present within,

4

a dwelling, residence or occupied vehicle; or the person

5

against whom the force is used is or is attempting to

6

unlawfully and forcefully remove another against that

7

other's will from the dwelling, residence or occupied

8

vehicle.

9

(ii)  The actor knows or has reason to believe that

10

the unlawful and forceful entry or act is occurring or

11

has occurred.

12

(2.2)  The presumption set forth in paragraph (2.1) does

13

not apply if:

14

(i)  the person against whom the force is used has

15

the right to be in or is a lawful resident of the

16

dwelling, residence or vehicle, such as an owner or

17

lessee;

18

(ii)  the person sought to be removed is a child or

19

grandchild or is otherwise in the lawful custody or under

20

the lawful guardianship of the person against whom the

21

protective force is used;

22

(iii)  the actor is engaged in a criminal activity or

23

is using the dwelling, residence or occupied vehicle to

24

further a criminal activity; or

25

(iv)  the person against whom the force is used is a

26

peace officer acting in the performance of his official

27

duties and the actor using force knew or reasonably

28

should have known that the person was a peace officer.

29

(2.3)  An actor who is not engaged in a criminal

30

activity, who is not in illegal possession of a firearm and

<--

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1

who is attacked in any place where the actor would have a

2

duty to retreat under paragraph (2)(ii), has no duty to

3

retreat and has the right to stand his ground and use force,

4

including deadly force, if:

5

(i)  the actor has a right to be in the place where

6

he was attacked;

7

(ii)  the actor believes it is immediately necessary

8

to do so to protect himself against death, serious bodily

9

injury, kidnapping or sexual intercourse by force or

10

threat; and

11

(iii)  the person against whom the force is used

12

displays or otherwise uses:

13

(A)  a firearm or replica of a firearm as defined

14

in 42 Pa.C.S. § 9712 (relating to sentences for

15

offenses committed with firearms); or

16

(B)  any other weapon readily or apparently

17

capable of lethal use.

18

(2.4)  The exception to the duty to retreat set forth

<--

19

under paragraph (2.3) does not apply if the person against

20

whom the force is used is a peace officer acting in the

21

performance of his official duties and the actor using force

22

knew or reasonably should have known that the person was a

23

peace officer.

24

(2.4) (2.5)  Unless one of the exceptions under paragraph

<--

25

(2.2) applies, a person who unlawfully and by force enters or

26

attempts to enter an actor's dwelling, residence or occupied

27

vehicle or removes or attempts to remove another against that

28

other's will from the actor's dwelling, residence or occupied

29

vehicle is presumed to be doing so with the intent to commit:

30

(i)  an act resulting in death or serious bodily

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1

injury; or

2

(ii)  kidnapping or sexual intercourse by force or

3

threat.

4

(2.5) (2.6)  A public officer justified in using force in

<--

5

the performance of his duties or a person justified in using

6

force in his assistance or a person justified in using force

7

in making an arrest or preventing an escape is not obliged to

8

desist from efforts to perform such duty, effect such arrest

9

or prevent such escape because of resistance or threatened

10

resistance by or on behalf of the person against whom such

11

action is directed.

12

(3)  Except as [required by paragraphs (1) and (2) of

13

this subsection,] otherwise required by this subsection, a

14

person employing protective force may estimate the necessity

15

thereof under the circumstances as he believes them to be

16

when the force is used, without retreating, surrendering

17

possession, doing any other act which he has no legal duty to

18

do or abstaining from any lawful action.

19

* * *

20

(d)  Definition.--As used in this section, the term "criminal

21

activity" means conduct which is a misdemeanor or felony, is not

22

justifiable under this chapter and is the proximate cause of 

<--

23

related to the confrontation between an actor and the person

<--

24

against whom force is used.

25

Section 3.  Section 506 of Title 18 is amended to read:

26

§ 506.  Use of force for the protection of other persons.

27

(a)  General rule.--The use of force upon or toward the

28

person of another is justifiable to protect a third person when:

29

(1)  the actor would be justified under section 505 [of

30

this title] (relating to use of force in self-protection) in

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1

using such force to protect himself against the injury he

2

believes to be threatened to the person whom he seeks to

3

protect;

4

(2)  under the circumstances as the actor believes them

5

to be, the person whom he seeks to protect would be justified

6

in using such protective force; and

7

(3)  the actor believes that his intervention is

8

necessary for the protection of such other person.

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(b)  [Exceptions] Exception.--Notwithstanding subsection (a)

10

[of this section:

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(1)  When the actor would be obliged under section 505 of

12

this title to retreat, to surrender the possession of a thing

13

or to comply with a demand before using force in self-

14

protection, he is not obliged to do so before using force for

15

the protection of another person, unless he knows that he can

16

thereby secure the complete safety of such other person.

17

(2)  When the person whom the actor seeks to protect

18

would be obliged under section 505 of this title to retreat,

19

to surrender the possession of a thing or to comply with a

20

demand if he knew that he could obtain complete safety by so

21

doing, the actor is obliged to try to cause him to do so

22

before using force in his protection if the actor knows that

23

he can obtain complete safety in that way.

24

(3)  Neither the actor nor the person whom he seeks to

25

protect is obliged to retreat when in the dwelling or place

26

of work of the other to any greater extent than in his own.],

27

the actor is not obliged to retreat to any greater extent

28

than the person whom he seeks to protect.

29

Section 4.  Section 3903(a), (a.1) and (b) of Title 18 are

30

amended and the section is amended by adding a subsection to

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1

read:

2

§ 3903.  Grading of theft offenses.

3

(a)  Felony of the second degree.--Theft constitutes a felony

4

of the second degree if:

5

(1)  The offense is committed during a manmade disaster,

6

a natural disaster or a war-caused disaster and constitutes a

7

violation of section 3921 (relating to theft by unlawful

8

taking or disposition), 3925 (relating to receiving stolen

9

property), 3928 (relating to unauthorized use of automobiles

10

and other vehicles) or 3929 (relating to retail theft).

11

(2)  The property stolen is a firearm.

12

(3)  In the case of theft by receiving stolen property,

13

the property received, retained or disposed of is a firearm

14

[and the receiver is in the business of buying or selling

15

stolen property].

16

(4)  The property stolen is any amount of anhydrous

17

ammonia.

18

(a.1)  Felony of the third degree.--Except as provided in

19

subsection (a) or (a.2), theft constitutes a felony of the third

20

degree if the amount involved exceeds $2,000, or if the property

21

stolen is an automobile, airplane, motorcycle, motorboat or

22

other motor-propelled vehicle, or in the case of theft by

23

receiving stolen property, if the receiver is in the business of

24

buying or selling stolen property.

25

(a.2)  Felony of the first degree.--Theft constitutes a

26

felony of the first degree if, in the case of theft by receiving

27

stolen property, the property received, retained or disposed of

28

is a firearm and the receiver is in the business of buying or

29

selling stolen property.

30

(b)  Other grades.--Theft not within subsection (a) [or], 

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1

(a.1) [of this section] or (a.2), constitutes a misdemeanor of

2

the first degree, except that if the property was not taken from

3

the person or by threat, or in breach of fiduciary obligation,

4

and:

5

(1)  the amount involved was $50 or more but less than

6

$200 the offense constitutes a misdemeanor of the second

7

degree; or

8

(2)  the amount involved was less than $50 the offense

9

constitutes a misdemeanor of the third degree.

10

* * *

11

Section 5.  The definition of "loaded" in section 6102 of

12

Title 18 is amended to read:

13

§ 6102.  Definitions.

14

Subject to additional definitions contained in subsequent

15

provisions of this subchapter which are applicable to specific

16

provisions of this subchapter, the following words and phrases,

17

when used in this subchapter shall have, unless the context

18

clearly indicates otherwise, the meanings given to them in this

19

section:

20

* * *

21

"Loaded."  A firearm is loaded if the firing chamber, the

22

nondetachable magazine or, in the case of a revolver, any of the

23

chambers of the cylinder contain ammunition capable of being

24

fired. In the case of a firearm which utilizes a detachable

25

magazine, the term shall mean a magazine suitable for use in

26

said firearm which magazine contains such ammunition and has

27

been inserted in the firearm or is in the same container or,

28

where the container has multiple compartments, the same

29

compartment thereof as the firearm. If the magazine is inserted

30

into a pouch, holder, holster or other protective device that

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1

provides for a complete and secure enclosure of the ammunition,

2

then the pouch, holder, holster or other protective device shall

3

be deemed to be a separate compartment.

4

* * *

5

Section 6.  Section 6109(m.3) of Title 18 is amended to read:

6

§ 6109.  Licenses.

7

* * *

8

(m.3)  Construction.--Nothing in this section shall be

9

construed to [permit]:

10

(1)  Permit the hunting or harvesting of any wildlife

11

with a firearm or ammunition not otherwise permitted by 34

12

Pa.C.S. (relating to game).

13

(2)  Authorize any Commonwealth agency to regulate the

14

possession of firearms in any manner inconsistent with the

15

provisions of this title.

16

* * *

17

Section 7.  Title 42 is amended by adding a section to read:

18

§ 8340.2.  Civil immunity for use of force.

19

(a)  General rule.--An actor who uses force:

20

(1)  in self-protection as provided in 18 Pa.C.S. § 505 

21

(relating to use of force in self-protection);

22

(2)  in the protection of other persons as provided in 18

23

Pa.C.S. § 506 (relating to use of force for the protection of

24

other persons);

25

(3)  for the protection of property as provided in 18

26

Pa.C.S. § 507 (relating to use of force for the protection of

27

property);

28

(4)  in law enforcement as provided in 18 Pa.C.S. § 508 

29

(relating to use of force in law enforcement); or

30

(5)  consistent with the actor's special responsibility

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1

for care, discipline or safety of others as provided in 18

2

Pa.C.S. § 509 (relating to use of force by persons with

3

special responsibility for care, discipline or safety of

4

others)

5

is justified in using such force and shall be immune from civil

6

liability for personal injuries sustained by a perpetrator which

7

were caused by the acts or omissions of the actor as a result of

8

the use of force.

9

(b)  Attorney fees and costs.--If the actor who satisfies the

10

requirements of subsection (a) prevails in a civil action

11

initiated by or on behalf of a perpetrator against the actor,

12

the court shall award reasonable expenses to the actor.

13

Reasonable expenses shall include, but not be limited to,

14

attorney fees, expert witness fees, court costs and compensation

15

for loss of income.

16

(c)  Definition.--As used in this section, the term

17

"perpetrator" shall mean a person against whom an actor is

18

justified in using force as provided in 18 Pa.C.S. § 505, 506,

19

507, 508 or 509.

20

Section 8.  This act shall take effect in 60 days.

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